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At probation trial, testimony about 'lookouts'

By Andy Metzger, State House News Service

Updated:
06/11/2014 08:50:52 AM EDT

BOSTON -- A former probation department official testified Tuesday that he was assigned as "lookout" for a secret meeting between his boss and former Speaker Tom Finneran about shifting the probation officer appointing authority away from judges and into the hands of the commissioner.

Testifying in federal court with an immunity agreement, Francis Wall said after Finneran and the former probation commissioner John O'Brien met in Finneran's State House office around 2001, the speaker told them both to "ensure the House that he was a proponent of patronage."

A law was approved moving the appointing authority from presiding judges to the commissioner, and prosecutors argue that O'Brien and two of his former deputies, Elizabeth Tavares and William Burke, used their power to operate a patronage system, shuttling jobs to the politically connected.

Prosecutors introduced a document showing that former Rep. Salvatore DiMasi, a member of Finneran's leadership team at the time, sponsored the amendment that made the change in appointing authority in the fiscal year 2002 budget. Wall said that former Chief Justice of Administration and Management Barbara Dortch-Okara - who is now chairwoman of the State Ethics Commission - instructed O'Brien not to support the bill, which was the reason Wall was "keeping an eye out for the chief justice."

Wall testified that Judge James Dolan, who was then presiding at the New Bedford District Court, had said he would no longer abide by the "quid pro quo" arrangement for appointing probation officers and had referenced Sen.

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Mark Montigny, then the chairman of Senate Ways and Means.

"He and he alone would make the appointment," Wall recalled Tuesday.

Reached at his law firm Dolan Connly, the retired judge who presided for years in Dorchester District Court, recalled his temporary assignment in New Bedford and said his predecessor and Montigny had a "falling out over this sponsored position" of a probation officer.

"Sen. Montigny's name would come up as a very strong and influential legislator in that area who had sponsored people for positions at the courthouse . . . " and at UMass Dartmouth, Dolan told the News Service Tuesday. Dolan said Wall served with him at the court in Dorchester and after being informed of Wall's testimony, he said, "I don't recall that conversation with Fran Wall, but that certainly reflected my view when I arrived down there."

Dolan said he does not expect to be called as a witness.

Wall, who testified for about a half hour before court adjourned Tuesday, was an integral part of the hiring process in the probation department, and therefore could prove to be a valuable witness for the prosecution, which has charged O'Brien, Tavares and Burke with fraud and racketeering. Defense attorneys have successfully undercut many of the prosecution's prior witnesses, calling into question their memory and understanding of events.

A 63-year-old who began working for the probation department right after graduating from Northeastern University in 1974, Wall met O'Brien when the two worked in Boston courts, and later became friends with him, sharing an interest in sports, attending events and traveling together at least twice, he said.

Wall, who was promoted to deputy commissioner by O'Brien about 15 years ago, said he was "involved in all aspects of the interviews" when between 600 and 700 people received appointments, and he was often the chairman of the final interview committee, which prosecutors claim often ranked politically backed candidates first even if they were not the most qualified.

Wall said candidates were "advised that they'd be evaluated solely" on their answers in a "very rigid" interview process developed by Tavares and O'Brien, though Wall said he would have received from O'Brien the names in the order they should be ranked before the interviews were conducted.

Defense attorneys have tried to frame the case as the criminalization of what they say is the standard hiring process within the judiciary and throughout state government.

Defense attorney William Fick noted Tuesday that former Rep. Marty Walsh, now the mayor of Boston, and former District Attorney Martha Coakley, now the frontrunner in the gubernatorial election, appeared on a list of sponsors endorsing the candidacy of an Allison Quinn Connolly for a probation job.

"The making of recommendations is not a violation of law," Judge William Young reminded the jury, a frequent admonition in a case where prosecutors claim the three former probation officials fraudulently presented the patronage hiring as merit-based. Young said, "Whatever you may think of patronage, patronage is not criminal."

Another Probation Department official testified Tuesday that O'Brien told her she could delete lists she had compiled of job candidates and their legislative sponsors, and estimated he told her that in the spring of 2010, around the time when scrutiny from the Boston Globe and Commonwealth Magazine triggered O'Brien's ouster and an investigation.

"He said that it would be OK to delete the sponsor lists, that we didn't need them," said Maria Walsh, who said it was the first time she could recall O'Brien talking to her about deleting files, and said she deleted some but not all of them. Walsh received a March 6, 2012 letter granting her immunity.

Walsh, a former aide to Finneran who became manager of intergovernmental affairs for the probation department, testified that she kept a running spreadsheet of the recommendations made by lawmakers and others for job candidates.

"I called them sponsor lists, just in my own mind," said Walsh, who said that term was not in wide use in the office and said she continues to hold the same position in the department. She said, "When there was a job opening, or even when there wasn't, people would call and recommend candidates."

The sponsors were mostly legislators, but they also included a "significant" number of judges, as well as police officers, teachers and others, Walsh said.

Walsh was also shown emails where she lobbied legislative staff for a classification that would be lucrative for probation officials' pensions. Former Sen. Jack Hart previously testified that he supported the change and that it did not become law. The emails show that O'Brien wanted the 2004 bill (S 2240) amended to include the commissioner, deputies and other probation officials.

In a May 2005 email, Walsh pushed for the Senate to match the House funding of the department, and said the department planned to fill 167 probation officer positions. In the email, Walsh thanked someone for telling former Sen. Marian Walsh about a requested amendment to boost the Senate's probation funding, which was $1 million less than the House.

There are scores of sponsor sheets that were introduced as evidence, meaning even if they engender little testimony during the trial, jurors will have the opportunity to review them before reaching their verdict.

The documents noted sponsorships by Sen. Stan Rosenberg, Rep. Paul Donato and Judge Michael Pomarole, in addition to several from Sen. Marc Pacheco and separate lists devoted to former Senate Ways and Means Chairwoman Therese Murray, now the Senate president, and former House Speaker Salvatore DiMasi, who is serving time in federal prison in the wake of a corruption conviction.

Former Senate President Robert Travaglini, DiMasi, former Rep. Steven Walsh and Sen. Gale Candaras are all listed as sponsors for Kevin O'Brien, one of the hires prosecutors contend was fraudulent.

Congressman Michael Capuano is listed as asking for "any advancement" for a Tim McWatters while Steve Anzalone, who hails from a family of court officers, received the backing of Travaglini, Sen. Stephen Brewer, Reps. Jamie Murphy, Tim Toomey spelled "Twomey" and Stephen "Stat" Smith, a former Everett Democrat who later pled guilty to voter fraud. Rep. Todd Smola, a Warren Republican, also appeared on one of the lists that flashed on the screen during the trial.

Amid the testimony Tuesday, a juror asked a written question of Young that could hint at how the case is developing. The juror wanted a refresher on the definition of racketeering, and Young said he would give that instruction Wednesday.

Wall, who has yet to be cross-examined by the defense, obtained a proffer agreement in December 2010 that gave him "consideration of a grant of immunity" in exchange for his cooperation and on April 15, 2014, Young signed an order giving him immunity for his testimony. He resigned in 2011.

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